Ukraine to voluntarily implement Art. 17 of the Copyright DSM Directive

The decision to transpose Art. 17 comes as part of a broader copyright reform, with five alternative bills on copyright currently pending before the Ukrainian Parliament. These five bills all aim generally at complying with the EU/Ukraine Association Agreement, which requires Ukraine to implement certain provisions from the InfoSoc, the Rental and Lending, the Satellite and Cable, the Database, and the Resale Right Directives (but not the more recent Copyright DSM Directive, as it was adopted after the Association Agreement was signed).

Four of the five alternative bills include Art. 60, which is modelled upon Art. 17 Copyright DSM Directive. The comment below builds on the governmental bill, No 5552-4 (the other bills differ only slightly from the governmental one). See here for an unofficial translation of Art. 60 of 5552-4.

Art. 60 reproduces almost verbatim the wording of Art. 17 Copyright DSM Directive. It stipulates that OCSSPs perform an act of communication to the public or an act of broadcasting, depending on the services; hence they require an authorisation from rightholders.

Failure to secure an authorisation means that an OCSSP will be held liable for the unauthorised use of user-uploaded content, unless it (1) took “all possible actions” [as opposed to “best efforts” in the Copyright DSM Directive] to secure such an authorisation; (2) took “all possible actions” to disable exchange of content, about which a notice has been filed; and (3) acted to terminate infringement and to prevent future uploads of content, in respect of which a notice has been submitted. In determining whether an OCSSP has complied, account shall be taken of the number of users of the relevant services, of works and subject-matters used, as well as the availability and efficiency (but not the cost: cf Art. 17(5)) of technical means necessary to comply with its obligations.

Draft Art. 60 further relies on Art. 58, which regulates the complaint and redress mechanism (in a way that is akin to the notice and action procedure under Ukrainian law). According to Art. 58, an OCSSP, upon receiving a notice from a rightholder, has 48 hours either to disable access to the content or to send a counter-notice, explaining its reasons for declining to do so. Ukraine may thus opt for an ex post blocking of content.

Moreover, draft Art. 60 provides that notices may only be sent through an attorney-at-law or a patent attorney. This arguably makes the system more friendly to the interests of the OCSSPs. However, should Ukraine decide to continue with transposing additional recent EU law, the notice and action system will have to be revised, because in its current form it does not correspond with the procedure described in the draft Digital Services Act, which allows notices to be sent directly by individuals. It is also noted that the draft Art. 60 does not specifically provide that legitimate uses of content (such as in quotes, reviews or parodies) are excluded from its scope.

The overarching question is why Ukraine would decide to implement Art. 17, when it was not bound to it. As The IPKat readers surely know, Art. 17 is the most controversial provision in the Copyright DSM Directive [read The IPKat’s posts on the topic]. In the opinion of this Kat, Ukraine would be better advised to wait for national transpositions as well as further clarifications from the CJEU on how the system should be designed (including the Polish challenge to Art. 17). At the moment, however, it seems the EU gravitational force in copyright legislation may be prevailing.